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U.S. v.

Richter
IN THE CASE OF
UNITED STATES, Appellee
v.
Jeffrey R. RICHTER, Technical Sergeant
U.S. Air Force, Appellant

No. 98-0109
Crim. App. No. 32106

United States Court of Appeals for the Armed Forces


Argued November 17, 1998
Decided August 9, 1999
GIERKE, J., delivered the opinion of the Court, in which COX, C.J., and EFFRON,
J., joined. SULLIVAN, J., filed an opinion concurring in part and dissenting in part.
CRAWFORD, J., filed an opinion concurring in the result.
Counsel
For Appellant: Captain Tishlyn Taylor (argued); Colonel Douglas H. Kohrt and
Captain W. Craig Mullen (on brief).
For Appellee: Major Eric D. Placke (argued); Lieutenant Colonel Michael J. Breslin
and Lieutenant Colonel Anthony P. Dattilo (on brief); Major Ronald A. Rodgers and
Captain Martin J. Hindel.
Military Judge: Charles W. Hasskamp

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION


BEFORE PUBLICATION.

Judge GIERKE delivered the opinion of the Court.

A general court-martial composed of officer members convicted appellant, contrary


to his pleas, of dereliction of duty, wrongful disposition of military property (3
specifications), larceny, and wrongful disposition of property to prevent seizure (2
specifications), in violation of Articles 92, 108, 121, and l34, Uniform Code of
Military Justice, 10 USC 892, 908, 921, and 934, respectively. The adjudged
and approved sentence provides for a bad-conduct discharge, confinement for 6
months, and reduction to airman basic. The Court of Criminal Appeals affirmed the
findings and sentence in an unpublished opinion.
This Court granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ERRED BY DENYING THE
MOTION TO SUPPRESS EVIDENCE SEIZED FROM
APPELLANTS TRUCK, HOME, GARAGE, AND STORAGE
AREAS.
A
WHETHER THE MILITARY JUDGE ERRED BY CONCLUDING
THAT SGT MAXWELL WAS NOT ACTING AS A GOVERNMENT
AGENT OR WITH COLOR OF AUTHORITY WHEN [U.S. AIR
FORCE OFFICE OF SPECIAL INVESTIGATIONS (OSI)] AGENTS
DIRECTED HER TO PLACE A PRETEXT CALL TO APPELLANT
FALSELY INFORMING HIM THAT OSI AGENTS SAID THEY
HAD A SEARCH WARRANT AND WERE PRESENTLY ON THEIR
WAY TO SEARCH HIS HOME.
B
WHETHER THE MILITARY JUDGE ERRED BY CONCLUDING
THAT APPELLANT VOLUNTARILY CONSENTED TO THE
SEARCH OF HIS TRUCK CAB, GIVEN THAT AGENTS HAD
ALREADY SEIZED EVIDENCE OUT OF THE BACK OF HIS
TRUCK, HE WAS UNDER APPREHENSION AND PLACED IN A
LOCKED SECURITY POLICE CAR, HE WAS NOT ADVISED OF
HIS ARTICLE 31 RIGHTS, AND HE REASONABLY BELIEVED
OSI ALREADY HAD A SEARCH WARRANT SINCE OSI LIED TO
HIM THROUGH THEIR AGENT ABOUT THE EXISTENCE OF A
WARRANT.
C

WHETHER THE MILITARY JUDGE ERRED BY CONCLUDING


THAT APPELLANT VOLUNTARILY CONSENTED TO THE
SEARCH OF HIS HOME, GIVEN THAT AGENTS ALREADY
SEIZED EVIDENCE OUT OF THE FRONT AND BACK OF HIS
TRUCK, HE WAS UNDER APPREHENSION AND TAKEN TO AN
OSI INTERVIEW ROOM, HE WAS NOT ADVISED OF HIS
ARTICLE 31 RIGHTS, HE WAS DENIED HIS REQUEST TO CALL
HIS HOME, AND HE REASONABLY BELIEVED THE OSI
ALREADY HAD A SEARCH WARRANT SINCE OSI
INTENTIONALLY LIED TO HIM THROUGH THEIR AGENT
ABOUT THE EXISTENCE OF A SEARCH WARRANT.
II
WHETHER, AFTER THE CONVENING AUTHORITY DENIED A
DEFENSE REQUEST FOR IMMUNITY FOR AN EXCULPATORY
WITNESS BUT GRANTED A PROSECUTION REQUEST FOR
IMMUNITY FOR FIVE INCULPATORY WITNESSES, THE
MILITARY JUDGE ERRED BY FAILING TO EITHER DIRECT
THE CONVENING AUTHORITY TO GRANT THE REQUESTED
IMMUNITY OR ABATE THE PROCEEDINGS.
III
WHETHER THIS COURT SHOULD ORDER A DUBAY HEARING
TO EXAMINE THE ALLEGATION THAT MAJOR PETERSON,
THE PREFERRAL COMMANDER, WAS IMPROPERLY
PRESSURED BY THE LEGAL OFFICE TO PREFER CHARGES.
Factual Background Issue I (Motion to Suppress)
Appellant was the noncommissioned officer-in-charge (NCOIC) of the Combat
Supply Station at Nellis Air Force Base, Nevada, working at Indian Springs Air
Base. Appellant is a 34-year-old security policeman with 16 years of service. His
experience as a security policeman has been in area security, not law enforcement.
Special Agent (SA) Karl Langman, a member of the OSI at Nellis Air Force Base,
testified that a member of the Ground Combat Training Flight (GCTF), Sergeant
(Sgt) Joseph Marshall, informed him that a number of individuals were stealing and
diverting government property for personal use. Sgt Marshall identified appellant as
one of the individuals involved. In a statement dated March 30, 1995, Sgt Marshall
related that appellant had been seen loading some tents into another NCOs
vehicle. In a statement dated April 3, 1995, Sgt Marshall said that appellant took a
government-owned mountain bike that was being turned in as excess government

property. Sgt Marshall did not say specifically when he observed appellants
conduct, but SA Langman was under the impression it was in early 1995. SA Ray,
the OSI operations superintendent, recalled SA Langman telling him that Sgt
Marshall said that appellants garage "is like a warehouse."
SA Langman also was aware of three audit reports from the Air Force Audit Agency
indicating lack of control or accountability for government property in appellants
unit. He remembered that night-viewing devices and radios were reported as missing
in the audit reports.
SA Langman testified that, after receiving the information from Sgt Marshall, he
also interviewed Sgt Kimberly Maxwell, a member of GCTF. Sgt Maxwell told him
that appellant gave her a medical cabinet. She consented to a search of her residence
and the cabinet was seized.
After interviewing Sgt Maxwell, SA Langman and SA Ray concluded that appellant
probably had government property in his quarters. They asked Sgt Maxwell to make
a pretext telephone call to appellant. She was instructed to tell appellant that her
house had been searched by the OSI and the medical cabinet seized, and that she had
overheard a conversation to the effect that OSI had a warrant and "possibly" was
coming to his house next. SA Ray testified that Sgt Maxwell told appellant:
OSI was at my house, they had a search warrant. They took the medical
chest that you said I could have. Im scared. I heard them say that they
might be coming to your house next, they have a search warrant.
Appellants recollection of the telephone call was similar. He testified that Sgt
Maxwell told him "[t]hat OSI had a search warrant and they had been to her house,
and they picked up the medical shelf that she had, and she overheard that they had a
search warrant and they were coming to [his] house."
Before Sgt Maxwell made the call, SA Landman and several other investigators
positioned themselves to watch appellants residence. A second police unit was
positioned to stop appellants vehicle "when and if he departed his house with
property." SA Ray explained that the purpose of the telephone call was, "if he did
indeed have property as alleged, that it might prompt him to leave the house with the
property." SA Joseph Wentela described the purpose of the telephone call similarly:
We were going to have a phone call made and see what his reaction was
going to be . . . to see if he did in fact try to take equipment that he may
not need to have at home back to his work center or somebody elses
house, just to try to get rid of some equipment that he shouldnt have.
A few moments after Sgt Maxwell made the call, SA Langman observed "two white

individuals" near a storage shed alongside the garage. One individual appeared to be
loading items in the bed of a truck. They also observed someone near the garbage
can. Because it was getting dark, SA Langman was unable to identify the person
loading the truck. They could not see whether the person was removing items from
the storage shed and placing them in the garbage can or in the bed of the truck.
SA Langman observed the person who had been loading items into the bed of the
truck get into the cab, start the engine, and begin to drive toward the "Craig Road
gate." The second police team stopped the truck. They used headlights and
flashlights for illumination. As SA Langman approached the truck from the rear,
two other investigators pointed out "apparent government property" in an open box
in the bed of the truck.
Appellant, who was driving, asked why he had been stopped, and SA Langman told
him he was "under investigation for larceny of government property." SA Langman
testified that appellant then made a "spontaneous statement" that "he was taking
[the] government property back to work and there was more at his house." SA
Langman testified that he cautioned appellant "that he was under investigation for
larceny of government property and not to make any more statements." SA Langman
seated appellant in the back of a police vehicle, but did not advise him at this point
of his rights under Article 31, UCMJ, 10 USC 831.
Appellant testified that he was stopped and frisked by Sgt Rogers, a security
policeman, after his truck was stopped. He testified that SA Langman told him,
"Youre being charged with larceny of government property from GCTF." He then
heard someone say, "We have night vision," and he saw Sgt Rogers holding up the
case for a night vision device. He testified that SA Langman told Sgt Rogers, "Seize
it for plain view." He testified that he then said, "Yes, theyre in there, Im on my
way to work." He testified that SA Langman asked him, "Then why are you going
out this gate?" He responded, "Because the gate by the youth center is normally
closed at sundown." When appellant said he was going to work, SA Langman said,
"No, we know where youre going, youre going to your friend Nelsons."
Master Sergeant (MSgt) Steven Nelson was appellants supervisor, who was also
suspected of theft and diversion of government property.
SA Langman testified that, from his vantage point on the sidewalk, he could see a
large box in the bed of the truck. The box contained a night viewing device, some
winter-weight "bunny boots," and some camouflage netting. The box was open, so
that its contents were visible.
In his testimony on the motion to suppress, appellant admitted having government
property in his truck. He admitted putting a battery charger and battery for a radio, a
carrying case for a "Maxibeam" light, a global positioning system, and a camping

stove in his truck after receiving the telephone call. He testified that he intended to
take all the items back to work.
SA Langman asked appellant for his consent to search the vehicle. He testified that
he explained to appellant that "it was completely voluntary, that he didnt have to
allow us to go into his vehicle." Appellant acknowledged that he understood and he
consented.
Appellant testified that he did not try to stop the search of his truck because he
believed, based on the telephone call from Sgt Maxwell, that they had a search
warrant.
Appellant testified that he did not think he was free to leave when he was placed in
the back of the police vehicle. He thought he had been apprehended. After appellant
sat in the police vehicle for about 10-15 minutes, SA Langman asked him for
consent to search the truck. Appellant testified that he responded, "You already did,"
and SA Langman explained, "No, we want you to consent to searching the cab."
After appellant orally consented, the OSI searched the cab of the truck and seized
two radios and a battery charger.
SA Langman then instructed appellant to drive his truck out of the traffic lane of the
street and to lock it. Appellant testified that, after his truck was searched, SA
Langman told him that they were taking him to the OSI building. He asked to call
home to check on his son, but he was not allowed to call home or contact anybody
about his son.
Appellant was taken to the OSI office, placed in an interview room, and asked to
consent to a search of his residence. SA Ray filled in the written consent form, SA
Langman explained it, and appellant signed it.
SA Langman testified that he did not mention a search warrant to appellant at any
time, neither indicating that he had a warrant nor telling him that he did not have a
warrant. Likewise, SA Ray testified that there was no mention of a warrant. No one
told appellant that Sgt Maxwell had made the telephone call at the request of the
OSI.
Appellant testified that, when they arrived at the OSI office and SA Langman asked
him to consent to a search of his house, appellant responded that his only concern
was, "due to the hour, that [his] kids would be in bed." Appellant testified that he
asked, "Do we have to do this tonight?" and SA Langman said, "Yes." Appellant
testified that he concluded he had no choice, based on the telephone call from Sgt
Maxwell. He testified that his concern was that if he did not consent, the OSI would
use the search warrant to disturb his children and "just basically thrash the house."
He signed the consent form "because they told [him] they would not go in the

kids room." Defense counsel asked him, "Did you feel you had any real
alternatives to signing it?" Appellant responded, "Not if I didnt - if I wanted
them just to go into the house and go into the kids room, I suppose I didnt have
an alternative, but I did not want them going in and disturbing the kids, so thats
why I signed the consent form."
Appellant admitted that no one mentioned a warrant, that he did not ask about a
warrant, and that the OSI investigators did not say they would "trash [the] whole
house." He admitted that the consent form recites that he was not required to
consent. He admitted that he was not threatened, and that the OSI agents were
"professional." The written form recites that appellant consented to a search of
"Government Housing Unit 67B, Manch Manor, Nellis AFB, NV, 67B Stafford, Las
Vegas, NV 89115."
The search team at appellants house was composed of SA Langman, SA Wentela,
Sgt Rogers, and Senior Airman White. SA Langman testified that, when they arrived
at appellants house, he felt he owed appellants wife "an explanation as to why
[they] were there." He told her "that [they] were going to be as expeditious and
thorough as [they] could but not interrupt her children if at all possible, [and] that
[they] were going to begin in the garage."
SA Langman testified that, as soon as the search team began searching the garage,
appellant began identifying government property as it was found. SA Langman
decided to "stop at that point and advise him." SA Langman advised appellant of his
rights under Article 31 and then continued searching.
While the garage was being searched, Airman First Class (A1C) Beavor, one of the
security policemen, called SA Langmans attention to a black case in the garbage
can. A1C Beavor testified that he saw what appeared to be a night-vision equipment
case when he opened the trash can to dispose of a paper cup. This was the same
garbage can that SA Langman had noticed near appellants truck when the pretext
telephone call was made. It was on the curb in front of appellants house, next to
the driveway. The black case contained a Motorola radio. According to SA
Langman, appellant said that he brought the radio back from Saudi Arabia.
Appellant testified that the OSI asked why he threw the radio into the garbage can,
and he responded that he did not have a receipt for it and did not want the OSI to
find it.
After searching the garage, the agents searched the shed area next to the garage.
They seized three tents identified by appellant as government property. They moved
next to the back yard, where they found "two plastic containers with voluminous
items of individual equipment issue items, sleeping bag, et cetera."
Appellant testified that, when the search party moved from the garage to the back

yard, he did not object. He testified that he thought "that it was all part of the
warrant," even though no warrant was ever mentioned or displayed.
The search party returned to the OSI office with appellant, at some time after
midnight. SA Langman testified that, after a "reaffirmation of the oral rights, in
writing," appellant gave a written, sworn statement. The statement is exculpatory
and was not offered in evidence. The statement does not mention any belief by
appellant that the OSI had a warrant.
The military judge made extensive findings of fact and conclusions of law. He found
that appellant "is a mature, experienced, 16-year tech sergeant, 34 years of age, with
a security police AFC background for training." He found as fact that Sgt Marshall
and Sgt Maxwell had provided the information described by SA Langman, and that
the OSI had audit reports of missing items and supplies from appellants unit.
The military judge found that Sgt Maxwells pretext telephone call was made to
tell appellant "that the OSI had come to her house, searched her house with a
warrant, and were coming to his house with a warrant, or words to that effect." He
found that "the intent of the call being made was to observe [appellants] reactions,
if any, after receiving the call." He found that appellant "may have believed that Sgt
Maxwell was telling him the truth." Contrary to the implication in Issue I-A, the
military judge made no specific findings of fact or conclusions of law on the
question whether Sgt Maxwell was acting "as a government agent or with color of
authority."
The military judge found that SA Langman observed appellant, "in a quick fashion,
exit and enter his quarters a minimum of two or three times," place a "square item"
in the bed of his truck, and drive away. He found that appellant was stopped, frisked,
and advised that he was being investigated for theft of government property. He
found that appellant was not handcuffed or advised of his rights, but "was asked to
be seated in the rear of the security police car."
The military judge found that one of the security policemen observed a night-vision
goggles case in the bed of the truck and that SA Langman directed that the item be
seized. He also found that several security policemen and OSI agents observed
several items of suspected government property in the open bed of the truck.
The military judge found that appellant could not exit the police car, as appellant
had testified, but that he was not otherwise physically restrained. He found that
appellant was never advised that he was being arrested or apprehended.
The military judge found that appellant consented to a search of the truck, that he
did not ask about the consequences of refusing to consent, and that no one
mentioned a warrant. He found that, "[d]uring the street stop, the procedures were

done professionally, were physically nonthreatening, and in a noncoercive - at


least physically noncoercive - atmosphere."
The military judge found that appellant consented to a search of his "government
housing unit," and that appellant did not ask about the consequences of refusing to
consent. He found that appellant "conditioned his consent for doing the search at
night only," and "conditioned on avoiding a search of his childrens bedroom, but
in no other way."
The military judge ruled that appellant voluntarily consented to the search of his
truck, but that appellants consent to search the truck was unnecessary under the
automobile exception to the Fourth Amendment. The military judge ruled that the
OSI had sufficient evidence to make an investigative Terry stop. See Terry v. Ohio,
392 U.S. 1 (1968). He ruled that appellant had no expectation of privacy in the open
bed of the truck, and that there was probable cause to seize the items in plain view.
The military judge ruled that appellant validly consented to the search of his
government quarters, notwithstanding the pretext telephone call telling him that the
OSI had a warrant. He also ruled that the scope of appellants consent included the
yard, and that even if appellants original consent did not extend to the yard, he
voluntarily broadened his consent by not objecting when the search of the yard
began.
Finally, the military judge ruled that appellant had no reasonable expectation of
privacy in the contents of his garbage can. Based on his findings of fact and
conclusions of law, the military judge denied the motion to suppress.
Discussion
Appellant argues that Sgt Maxwells pretext telephone call vitiated his consent to
the search of both his vehicle and his home. The Government argues that the pretext
telephone call did not invalidate appellants consent to the search of the truck, and
that under the "automobile exception" to the Fourth Amendment, appellants
consent was not required. The Government argues further that appellant voluntarily
consented to the search of his home.
We review the military judges ruling on the motion to suppress for abuse of
discretion. His findings of fact will not be overturned unless they are clearly
erroneous or unsupported by the record. We review his conclusions of law de novo.
We will reverse only "if his decision [was] influenced by an erroneous view of the
law." United States v. Sullivan, 42 MJ 360, 363 (1995); see also United States v.
Reister, 44 MJ 409, 413 (1996).
We need not decide whether appellant validly consented to the search of his truck,

because the items were seized as a result of a valid investigative stop, observation of
items in plain view, and a search that was permissible under the "automobile
exception" to the Fourth Amendment requirement for a warrant. Mil. R. Evid. 314(f)
(1), Manual for Courts-Martial, United States (1995 ed.),* provides: "A person
authorized to apprehend . . . may stop another person temporarily when the person
making the stop has information or observes unusual conduct that leads him or her
reasonably to conclude in light of his or her experience that criminal activity may be
afoot." This rule implements the "stop and frisk" authority recognized by the
Supreme Court in Terry v. Ohio, supra. See Drafters Analysis of Mil. R. Evid.
314(f)(1), Manual, supra at A22-27; see also United States v. Texidor-Perez, 7 MJ
356, 358-59 (CMA 1979).
In this case, the OSI agents had received information from Sgt Marshall that
appellant had taken a government-owned bicycle for his personal use and had been
observed loading tents into a privately-owned vehicle. Sgt Maxwell surrendered a
government-owned medical cabinet that she said she received from appellant. Based
on the uncontested testimony of the OSI agents, the military judge found that the
intent of the pretext telephone call was "to observe [appellants] reactions, if any,
after receiving the call." When appellant was observed loading a large box into his
truck and driving toward the gate within minutes after the pretext call was made, the
"reasonable suspicion" required for a Terry stop was satisfied. Once the OSI agents
made a lawful investigative stop, it was not a violation of the Fourth Amendment for
them to observe items in plain view. See United States v. Owens, No. 98-0133, ___
MJ (8-9), citing Texas v. Brown, 460 U.S. 730 (1983); United States v. Wisniewski,
21 MJ 370, 372 (CMA 1986) ("Plain-view observations by an officer properly in a
position to have such a view do not constitute unreasonable searches under the
Fourth Amendment.").
The military judge found that one security policeman saw night-vision goggles in
the bed of the truck, and several security policemen and OSI agents saw other items,
i.e., boots and camouflage netting. At that point, they had probable cause to believe
that appellant had stolen government property in his truck. Mil. R. Evid. 315(g)(3)
implements the "automobile exception" and authorizes a search of an operable
vehicle without a warrant if there is probable cause. See Owens, supra at (9), and
cases cited therein. In light of the foregoing, we hold that the military judge
correctly ruled that appellants truck was lawfully searched and that the search was
not tainted by the pretext telephone call.
Unlike the search of appellants truck, the lawfulness of the search of his home is
based solely on his consent. Thus, the impact of the pretext telephone call on his
consent must be assessed. The question whether consent to a search was voluntarily
given "is a question of fact to be determined from all the circumstances."
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973).

In United States v. Kitts, 43 MJ 23, 27-28 (1995), this Court set out the legal
framework for reviewing a military judges determination that an accused
voluntarily consented to a search. Where the prosecution relies on consent, it has the
burden of proving consent by "clear and convincing evidence." Id., citing Mil. R.
Evid. 314(e)(5). On appeal, we will review the evidence "in the light most favorable
to the Government," and we will not overturn the military judges finding that an
accused voluntarily consented unless it is unsupported by the evidence or clearly
erroneous. Id., citing United States v. Kosek, 41 MJ 60, 64 (CMA 1994), and United
States v. Middleton, 10 MJ 123, 133 (CMA 1981).
In United States v. Salazar, 44 MJ 464, 468 (1996), this Court stated that "[l]aw
enforcement officials may properly use sting operations and informants in order to
gain valid consent or to induce criminals to bring stolen goods into plain view."
However, a search cannot be justified as based on consent where that "consent" was
given only after the official conducting the search has asserted that he has a warrant.
In such a case, the purported consent is mere acquiescence to authority. Bumper v.
North Carolina, 391 U.S. 543, 548 (1968); see Mil. R. Evid. 314(e)(4) ("Mere
submission to the color of authority . . . is not a voluntary consent."). When the
Government uses a third party as a mouthpiece to tell a person that law enforcement
authorities have a warrant, it cannot establish consent merely by showing the
absence of direct communication between law enforcement authorities and the
person giving consent.
On the other hand, mere mention of an intent to obtain a warrant or command
authorization does not vitiate consent. The question in each case is whether, under
the totality of the circumstances, the consent is truly voluntary. See United States v.
McClain, 31 MJ 130, 133 (CMA 1990) (Mention of intent to seek command
authorization "must be done in an appropriate manner so as to make the resulting
consent truly voluntary."); see also United States v. White, 979 F.2d 539, 542(7th
Cir. 1992) ("When the expressed intention to obtain a warrant is genuine . . . and not
merely a pretext to induce submission, it does not vitiate consent."); United States v.
Faruolo, 506 F.2d 490, 494 (2d Cir. 1974) (consent voluntarily given even though
FBI agent said warrant would be sought and probably would be given).
The military judges finding that appellant voluntarily consented was based on a
correct view of the law and is supported by the following evidence. See Kitts, 43 MJ
at 28.
First, Sgt Maxwell was not a superior, but a subordinate of appellant. Second,
appellant thought she was calling as a friend and coactor, not as an OSI agent. Third,
the warrant was mentioned to see if appellant would react, not to obtain his consent.
Fourth, there were several intervening events between the mention of a warrant and
appellants consent to the search of his residence. Fifth, appellant was advised by

OSI of his right to refuse consent. Sixth, appellant voluntarily consented to the
search of his truck, even though Sgt Maxwell had not mentioned the truck. Seventh,
at no time did any of the OSI agents or security police mention a warrant. Eighth,
even though appellant testified that he thought the OSI had a warrant, he used their
desire to obtain his consent as a bargaining chip to limit the scope of the search.
Finally, the record demonstrates that appellants attitude throughout the evening
was cooperative. He was so actively cooperative during the search of his residence
that SA Langman thought it necessary to stop the search and advise appellant of his
rights, because appellant was spontaneously pointing out government property.
Appellant insisted that he could justify and explain his possession of government
property. In contrast, he threw the Motorola radio into the garbage can because it
was the one item he did not think he could justify.
On this record, the military judges finding of voluntary consent was not clearly
erroneous. The nine factors set out above, considered together, support the military
judges finding.Accordingly, we hold that the military judge did not abuse his
discretion by denying the motion to suppress the evidence seized from appellants
residence. The Motorola radio seized from appellants garbage can was admissible
on two grounds. If the garbage can was within the scope of appellants consent to
the search of his residence, the radio was admissible as the product of a consensual
search. If the garbage can was outside the scope of the search of appellants
residence, the radio was admissible because appellant had no reasonable expectation
of privacy in a garbage can placed outside the curtilage for pickup. California v.
Greenwood, 486 U.S. 35, 40-41 (1988).
Factual Background Issue II (Request for Immunity)
The convening authority granted testimonial immunity to five government
witnesses, but refused to grant immunity to MSgt Steven Nelson, appellants
immediate superior, who was under investigation, along with appellant, for stealing
and diverting government property. The defense asked the military judge to direct
the convening authority to grant immunity to MSgt Nelson or abate the proceedings.
MSgt Nelson stated his intention to invoke his right against self-incrimination if
called to testify. Appellant made an offer of proof stating that MSgt Nelson would
testify that he told appellant that "it was appropriate to give sleeping bags, tents, and
other assorted camping equipment to the Boy Scouts for their use at a camp out." He
would testify further "[t]hat the Boy Scouts were directed to return the equipment to
the residence of [appellant]," and "[t]hat the sleeping bags, tents, and other camping
equipment found at [appellants] residence were the items [MSgt Nelson]
permitted the Boy Scouts to use for their camp out and were directed to return to
[appellants] residence."

Appellant testified that the Boy Scout request for the equipment came to him from
the scoutmaster, an Air Force captain, and through his wife, a den leader. He
discussed the request with MSgt Nelson. No one else was present during the
discussion. Appellant testified that MSgt Nelson directed him to let the Boy Scouts
use the equipment. The Boy Scouts used the equipment from March 31 until April
2, and then returned it to appellants residence on April 3. Appellant believed that,
because the Boy Scouts were dealing with him and not MSgt Nelson, they believed
that he authorized the use of the equipment.
During the hearing on the motion, the military judge noted and defense counsel
agreed that, even if the items loaned to the Boy Scouts were deleted, there would
still be numerous items alleged to have been stolen that were not loaned to the Boy
Scouts.
Counsel for both sides agreed that none of the five witnesses who had been granted
testimonial immunity were awaiting court-martial. At least one had been given
nonjudicial punishment and several had unfavorable information placed in their
personnel files. MSgt Nelson was the only other suspect awaiting trial by courtmartial.
The staff judge advocate (SJA) recommended that the convening authority deny the
request for testimonial immunity for three reasons. First, the Government was not
engaging in discriminatory use of immunity, because MSgt Nelson was already
targeted for prosecution. Second, the defense was unable to show that the evidence
could not be obtained from another source, because the Boy Scouts could also
testify to the same facts. Third, the testimony was not clearly exculpatory.
The convening authority denied the request without reciting any reasons. The
convening authority further commented, however, that, "[t]hough not a basis for the
denial, it should be noted that a grant of immunity for MSgt Nelson would create
substantial difficulty for the legal office in the prosecution of his case." This
"difficulty" was based on the fact that both prosecutors in appellants case were
also scheduled to prosecute MSgt Nelson and would have to be removed from a
complicated case less than a month before the scheduled trial date.
Responding to the defense motion, the prosecution presented the SJAs
recommendation and the charge sheet pertaining to MSgt Nelson. The prosecution
argued that RCM 704(e), Manual, supra, was not satisfied because MSgt Nelson
was targeted for prosecution.
The military judge denied the defense request to compel a grant of immunity or
abate the proceedings. He found that MSgt Nelson would refuse to testify, but found
no Government overreaching or discrimination because MSgt Nelson was "clearly a
target for prosecution." He found that the evidence was "clearly exculpatory" with

respect to some of the items allegedly stolen, but not as to the numerous other items.
Discussion
RCM 704(e) sets out a three-pronged test for determining when defense-requested
immunity must be granted or the proceedings abated:
(1) The witness intends to invoke the right against self-incrimination to
the extent permitted by law if called to testify; and
(2) The Government has engaged in discriminatory use of immunity to
obtain a tactical advantage, or the Government, through its own
overreaching, has forced the witness to invoke the privilege against selfincrimination; and
(3) The witness testimony is material, clearly exculpatory, not
cumulative, not obtainable from any other source and does more than
merely affect the credibility of other witnesses.
Because the three prongs are stated in the conjunctive, all three must be met. See
Drafters Analysis of RCM 704(e), Manual, supra at A21-38 ("Upon a finding that
all three prerequisites exist," a military judge may abate the proceedings.)
(Emphasis added.) This rule recognizes the view of a majority of the federal courts
that there is no right to grants of immunity under the Fifth or Sixth Amendments. Id.;
see United States v. Turkish, 623 F.2d 769, 773-74, 777 (2d Cir. 1980), cert. denied,
449 U.S. 1077 (1981), and cases cited therein. Where, as in this case, the witness is a
prosecution target and awaiting trial, the second prong is not met, and "there can be
no claim of discrimination or overreaching." United States v. Shandell, 800 F.2d
322, 324 (2d Cir. 1986); cf. United States v. Zayas, 24 MJ 132, 136 (CMA 1987)
(Military judge must "fashion an appropriate remedy" where prosecution "does not
make a particular and substantive contention that testimonial immunity will
jeopardize a contemplated future prosecution of the witness."). Accordingly,
because the second prong of RCM 704(e) was not satisfied, we hold that the military
judge did not abuse his discretion by refusing to abate the proceedings. See United
States v. Monroe, 42 MJ 398, 402 (1995) (military judges decision not to abate
proceedings reviewed for abuse of discretion).
Factual Background - Issue III (Alleged Command Influence)
Appellant did not assert unlawful command influence at trial. He raised the issue for
the first time before the court below. He submitted post-trial affidavits from himself,
MSgt Nelson, and MSgt Nelsons wife, asserting that Major (Maj) Peterson,
appellants commander, was coerced into preferring charges.

In his affidavit, appellant asserts that Maj Peterson told him, after the court-martial
but before the convening authoritys action, "that the legal office forced him into
charging [appellant]." MSgt Nelson asserts that, at some time between June 1 and
July 31, 1995, several months before appellants court-martial, he was informed by
his former first sergeant, MSgt Sharon Scott, that Maj Peterson told her that he did
not want to prefer charges but that "individuals at the Nellis Legal Office were
threatening to remove us from his command if he didnt prefer the charges," and
have a different command prefer the charges.
No affidavits from Maj Peterson, MSgt Scott, or any member of the legal office
were submitted. The record does not reflect a reason for not submitting them.
Discussion
Appellant has the initial burden of raising the issue of unlawful command influence.
United States v. Biagase, 50 MJ 143, 150 (1999), citing United States v. Stombaugh,
40 MJ 208, 213 (CMA 1994). At the appellate level, appellant "must show (1) facts
which, if true, constitute unlawful command influence; (2) show that the
proceedings were unfair; and (3) show that unlawful command influence was the
cause of the unfairness." United States v. Biagase, supra. The court below held that
the affidavits were insufficient to raise the issue of unlawful command influence.
We hold that, even if the affidavits were sufficient to raise the issue, it was waived.
The evidence was readily available from Maj Peterson and MSgt Scott before trial.
Appellant does not aver, and the record does not reflect, that any evidence was
concealed from him, or that he was unlawfully deterred from raising the issue.
Defects in preferring and forwarding charges are waived if not raised at trial, unless
the failure to raise the issue is itself the result of unlawful command influence.
United States v. Hamilton, 41 MJ 32, 37 (CMA 1994).
Decision
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
FOOTNOTE:
*

All Manual provisions are cited to the version in effect at the time of trial. The
1998 version is unchanged, unless otherwise indicated.

SULLIVAN, Judge (concurring in part and dissenting in part):


I concur in the majority opinion, except for the section on command influence. In

my view, command influence cannot be waived unless the waiver is clear and
knowing. Mere failure to raise command influence at the trial level does not
constitute a waiver. See United States v. Hamilton, 41 MJ 32, 39-41 (CMA 1994)
(separate opinions of Judges Wiss and Sullivan). The issue of command influence is
such a special threat to justice in the military that the ability to raise it deserves
special protections. A knowing and clear waiver must be found on the record to
deprive this issue from an appellant who raises it in good faith on appeal.

CRAWFORD, Judge (concurring in the result):


In addition to finding that there was a lawful stop, a plain view search and seizure,
and a valid search of the truck under the automobile exception, I would also hold
that there was probable cause for an arrest and a search incident to that arrest.
Additionally, I would hold that there was a valid consent to search based on
appellants signing a written consent to search after being advised of his rights. I
would excise from consideration of the consent to search the house, the call by
appellant's friend who said that the police had a search warrant, since this
information was not mentioned by the law enforcement officials at the time they
obtained written consent. Furthermore, we should not leave the bench and bar with
the impression that absent the nine factors considered by the majority, there would
not be voluntary consent. Such an implication is contrary to precedent of this Court,
cf. United States v. Bubonics, 45 MJ 93, 95 (1996), and the Supreme Court, cf.
Arizona v. Fulminante, 499 U.S. 279, 286 (1991).
Two law enforcement agents, SA Langman and SA Ray, had received information
from two non-commissioned officers (NCOs) that one had seen appellant stealing
government property and putting it in a truck and the other had received a
government medical cabinet from appellant. This was confirmed when the agents
seized the cabinet. The second NCO agreed to call appellant and tell him that the
police had seized the medical cabinet from her and that "they might be coming to
your house next, they have a search warrant."
Probable cause to search exists when there are reasonable grounds to believe that
items connected with criminal activity are located in the place to be searched. United
States v. Hester, 47 MJ 461, 463 (1998). Probable cause to arrest requires reasonable
grounds to believe that (1) an offense has been committed and (2) the person to be
arrested committed it. RCM 302(c), Manual for Courts-Martial, United States (1995
ed.). Both of these were met here. The information obtained from the NCOs was
based on their personal observation. See United States v. Wood, 25 MJ 46 (CMA
1987); United States v. Ochoa, 12 MJ 281 (CMA 1982). Additionally, the police

corroborated this information by seizing the cabinet from the second NCO. Hester,
supra at 464. Since both of these NCOs could have been charged with providing
false information to the police, there was additional reason to believe them.
Agents placed appellant's house under observation. After the telephone call,
appellant was seen loading items into the bed of his truck. When appellant drove
away, he was stopped by the agents. During the stop, they noticed government
property in the bed of the pickup truck. The issues in this case concern the search of
the truck and the subsequent search of appellant's home.
Although the police obtained consent to search the truck, it was not needed because
a search incident to arrest would allow a search of the truck bed. In United States v.
Chapman, 954 F.2d 1352 (7th Cir. 1992), a gray Ford Ranger pickup truck was the
description of a getaway vehicle used in a bank robbery. Two officers observed the
truck and stopped it. They found the two defendants in the back of the truck wearing
clothing matching the description of the robbers. As the defendants were escorted
out of the truck, the officers observed in plain view the top of a money bag, a
holster, and a dark ski mask. Once the defendants were handcuffed, the officers
found handguns underneath the carpeting in the front of the truck bed and money in
the money bag. The court found that the officers had probable cause to arrest the
defendants based on a number of factors: their knowledge that a robbery had just
occurred in the area; the description of the getaway vehicle; the initial evasion of the
police; and the observation of the two men hiding in the rear of the truck, the money
bag, holster, and ski mask. The court also concluded that, once the defendants were
arrested, the officers were justified in conducting a warrantless search of the truck
bed.
However, the court noted specifically the peculiarity of these facts:
Although the compartment in which Mr. Chapman was
hiding might not be a conventional passenger compartment,
he can take no solace from the fact that the Belton Court
noted that its holding did not extend to the trunk of an
automobile. [New York v. Belton, 453 U.S. 454, 461 n.4
(1981).] Under the circumstances of this case, it is
abundantly clear that the rear of the truck functioned as a
passenger compartment at the time of the arrest.
954 F.2d at 1358 n.6.
Since Belton, there have been several cases exploring what constitutes a trunk. In
United States v. Henning, 906 F.2d 1392, 1396 (10th Cir 1990), cert. denied, 498
U.S. 1069 (1991), the court determined that the back portion of a sport utility vehicle

is considered part of the passenger compartment, noting, "Where, as here, the


vehicle contains no trunk, the entire inside of the vehicle constitutes the passenger
compartment and may be lawfully searched." The Tenth Circuit later noted that the
determination that the cargo area of a sport utility vehicle, whether covered or
uncovered, is part of the passenger compartment is primarily based on
"reachability." United States v. Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir.
1999).
Based on these cases, I would hold that the items obtained from the bed of the truck
were obtained based on a search incident to arrest.
After being taken to the OSI Office, appellant was warned of his rights, waived
them, and consented to a search of his house.
When the police have probable cause to obtain a search warrant and tell an
individual that they could seek a search warrant, this does not undermine the
consent. See, e.g., United States v. Faruolo, 506 F.2d 490, 495 (2nd Cir. 1974)(not
coercive where belief was "well founded" that warrant would be issued). In this case,
it was the NCO who mentioned the search warrant, not the police. Cf. United States
v. Rios, 48 MJ 261 (1998); United States v. White, 48 MJ 251 (1998). Thus, there is
no direct compulsion by law enforcement officials. Trickery by the police does not
equal compulsion where there is independent probable cause to arrest an individual
and search his house. Police trickery is not necessarily wrong. See generally
Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies By the
Police, 76 Or. L. Rev. 775 (1997).
Based on appellant's lawful arrest, the search of appellants truck incident to that
arrest, and the signed written consent to search the house when the police had
sufficient probable cause to obtain a search warrant, I concur in the result.
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